Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

RFS operating ‘out of area’

An earlier version of this post appeared on 5 February 2019. After posting it my correspondent gave further details. In legal analysis the law’s not usually the issue, rather the issue is the law’s application to particular facts. The facts make all the difference. With more context, I deleted the original post and replace it with this one.

… powers of Brigade Officers (field and permit officers) within their Brigade area and the legitimacy of their ‘powers’ if that area extends outside of the LGA [Local Government Area] in which that brigade has been formed.

For example, a District/Team/Zone (DTZ) is generally aligned with Local Government boundaries. A Fire Control Officer (FCO) is appointed by the Commissioner to look after that DTZ. The brigades within that DTZ are therefore under that particular FCO’s authority, and I would assume that the delegation of powers under the Rural Fires Act 1997 via appointment as a Field or Permit Officer, would only be applicable to the LGA, regardless of any area of the Brigade which extends beyond this line.

My concern is in two parts:

That a volunteer may be liable for damages where they believe to be operating under Division 3 of the Act but those powers potentially do not extend beyond the LGA line;

That permits issued in this overlapping area are not valid as they have not been issued under the authority of the appointed FCO for that specific DTZ (RFS Service Standard 4.2.2 Fire Permits 2.4 (c))

I know that this is a very black & white view of the subject and that if a case like this was brought before a court, an area of grey might be applied; however on the face of it, would there be legal implications that RFS FCOs and Officers should be made aware of?

The answer has to be that the Rural Fire Service is the NEW SOUTH WALES Rural Fire Service. It may be arranged in ways to coordinate with Local Government Boundaries but that in no way is going to limit the operations of the service or its brigades. The division of the Service into areas for brigades, groups of brigades, districts, zones and regions is for the administration of the Service not to restrict operations. A brigade has a defined area of operation (s 18) but so does a group of brigades (s 19). A brigade that is part of a group must be able to operate within the group’s area of operations even if that is outside the brigade’s area. We know that RFS brigades travel in response to fires and operate across the state and the country. The purpose of having an area has to be so that when a triple zero call is received, the communications know which brigade and which group officer or which district manager to call to coordinate the response.

Rural fire districts

The Rural Fire Service is established to, amongst other things, provide ‘rural fire services for New South Wales’ (Rural Fires Act 1997 (NSW) s 9(1)). Rural fire services are the sorts of services you would expect from a fire service provided in ‘rural fire districts’ (s 9(4)). Local government areas are established for each council (Local Government Act 1993 (NSW) Chapter 9). Rural fire districts are created for each local government area (Rural Fires Act 1997 (NSW) s 6). Local governments may, in effect, combine to create in effect a larger single fire district (s 7).

Fire Control Officers

Fire control officers for each fire district are appointed by the Commissioner of the RFS (s 37).

A fire control officer is, subject to any direction of the Commissioner, responsible for the control and co-ordination of the activities of the Service in the rural fire district for which he or she is appointed as fire control officer.

Various powers are exercised by local authorities. These include the power to establish a brigade and determine its area of operation (ss 15 and 18). The Rural Fire Service has entered into Rural Fire District Service Agreements with many if not all local government areas that are outside fire districts where fire services are provided by NSW Fire and Rescue (s 6(2) and Fire and Rescue NSW Act 1989 (NSW) ss 5 and 5A). Under those agreement most of those responsibilities that would otherwise be exercised by council have been passed to the Rural Fire Service.

The Commissioner of the Rural Fire Service has delegated much decision making to staff and volunteers of the RFS (Rural Fire Service, Service Standard 1.3.1 Delegations and Authorisations (Including supplementary delegations – unincorporated area of NSW, 22 November 2013). The power to form a brigade, to determine its area of operation and appoint officer has been delegated to the relevant District Managers. That standard also says:

…

3. For the purpose of this Service Standard and related documents District Manager includes a Team or Zone Manager

4. A reference to a District Manager in this delegation refers to the District Manager for the relevant rural fire district.

5. Where a delegation is extended to a District Manager for a rural fire district which forms part of a number of rural fire districts that are managed by a team of members of the staff of the Service pursuant to a direction of the Commissioner, the delegation extends to the District Managers respectively of the other rural fire districts that form the team.

6. A reference to a Regional Manager in this delegation refers to the Regional Manager with responsibility for the relevant rural fire district.

7. A reference to a Fire Control Officer (FCO) in this Service Standard and related documents refers to a District Manager.

I’m going to infer, without looking further, that the District Manager is the FCO and if the District includes more than one local government area, the District Manager is the FCO for each local government area within that district.

Rural fire brigades

My correspondent refers to ‘Division 3 of the Act’. The Act is divided into parts and each part is divided into divisions so there is more than one ‘Division 3’. I infer my correspondent means ‘Part 2, Division 3, Rural Fire Brigades’. The powers of the officers of a brigade are vested by the Rural Fires Act 1997 (NSW) s 22 and the Commissioner’s delegation (Rural Fire Service, Service Standard 1.3.2 Powers of Officers, 19 March 2013). A Brigade officer has statutory authority to take all sorts of steps to deal with a fire and make premises safe (ss 22-26). They do not need specific permission from the Fire Control Officer though they are subject to the Fire Control Officer’s direction and control (s 38). The fire control officer can take command of firefighting operations and the operations of brigades, but they do not need to. Fires may occur where a single brigade turns out and deals with the fire, or maybe there are two or three brigades under the command of a group captain. Or there is a major campaign fire and the relevant Fire Control officer is acting as the incident controller. All of those responses are possible.

Even though a brigade has an ‘area of operation’ (Rural Fires Act 1997 (NSW) s 18) a person appointed an officer of a Brigade is an officer whether the brigade is within its designated area of operations or not. The captain of the Kickatinalong Brigade is the captain whether she or he is in Kickatinalong, Sydney or anywhere else. Further the Kickatinalong Brigade does not cease to exist once they appliance and crew leave the relevant rural fire district.

Section 21(2) says:

An officer of a rural fire brigade or group of rural fire brigades may exercise a function conferred or imposed on the officer:…

(b) at a place outside that rural fire district:

(i) with the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located, or

(ii) in accordance with a bush fire management plan or in circumstances prescribed by the regulations, or

(iii) within a fire district–with the approval of an officer of Fire and Rescue NSW.

After the writing the first edition of this post I have been advised that, by instrument dated 15 September 2017, the Commissioner has given standing authority for ‘An officer of a rural fire brigade or group of rural fire brigades…’ to exercise his or her authority in any fire district. That instrument can be read here.

The officer in charge at a fire, incident or other emergency may authorise any officer or member of a rural fire brigade or group of rural fire brigades to exercise all or specified functions under this Act of the officer in charge at a fire, incident or other emergency.

If a brigade is operating outside its designated territory it can do anything the officer in charge at the fire, or the Commissioner authorises them to do so and the Commissioner has authorised all brigade officers to exercise their powers in any fire district.

The conclusion so far

Where a brigade is in a local government area that is also a fire control district, the brigade can move outside that district and the officers can exercise their power and authority if they have ‘the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located’ and/or they are authorised by the relevant ‘officer in charge’ (if there is one, the visiting brigade captain could be the officer in charge). There is a standing authority of the Commissioner (s 21(2)). The authority of the officer in charge (s 40(1)) does not have to be in writing. It can be implied by a request to a brigade to respond ‘out of area’ and/or tasking by the relevant ‘officer in charge’ (s 40(2)).

The problem

The problem according to my correspondent is that in some districts brigades do not necessarily have sheds but equipment kept on local farms. The members may respond to fires without being tasked to do so, and in so doing, cross from one rural fire district to another. (I confess to still being unclear how they would know about the fires, but it’s possible if the boundary between one district and the other is the road outside the farm gate and they can see the fire burning on the neighbour’s property).

If the brigade in question notified the fire control centre that they were going and that was approved then for all practical purposes everyone is going to accept (without checking every delegation) that they had the appropriate authority under s 21(2). If they are paged or called and asked to attend that would be beyond question.

If they go without telling anyone that is a bigger problem but not for reasons suggested by my correspondent. If a brigade responds and does not let fire control centre know then the fire control centre does not know that brigade is now unavailable; if they receive a triple zero notification of the fire they do not know that the brigade is already there; if they do not know there is a fire they cannot start planning how they will scale up the response if necessary nor can they plan to support the crew in the field if they do not know they are in the field. If a firefighter gets injured it will be a bigger hurdle showing that the injury was suffered whilst on duty for the RFS and that may make the compensation process harder. I will however assume, for the sake of the argument, that the brigade has responded, the response is across the border of a rural fire district (and not just local government areas where the same district manager is the FCO for both local government areas) and they have not told anyone they are going. Let us also assume they do something negligent (though I can’t imagine what).

Question 1

Could a volunteer ‘be liable for damages where they believe to be operating under Division 3 of the Act but those powers potentially do not extend beyond the LGA line’? No.

Let me assure readers of this blog – volunteers will never be personally liable (deliberate and criminal misconduct excepted). When a brigade responds to a fire they are doing so as the Rural Fire Service. The Rural Fire Service is not a legal entity, but the Crown in Right of New South Wales is. The Crown can sue and be sued but it cannot actually do anything – it has no hands or mind. The hands and mind are provided by the people – the staff and volunteers – but when those hands and mind act, they are acting as the legal entity of the Crown. That is a long way of explaining that if there is a default by any of those people, a person affected would bring a legal action against the State of NSW. And the Crown will be liable for the negligence of its volunteers and staff because they are acting on behalf of the Crown (Crown Proceedings Act 1988 (NSW) and Government Sector Employment Act2013 (NSW)).

If a brigade sees a fire and chooses to go outside their fire district, they have the Commissioner’s standing authority but let us assume, for the sake of the argument, that authority of September 2017 had not been written. Let us therefore assume, again for the sake of the argument that they have not been requested or authorised to do so (s 21(2)) and have not been authorised by the person in charge of the fire (perhaps because there is not one). Even in those circumstances they are there as the Rural Fire Service. That is what it says on their uniforms and trucks and they are responding to a fire so they are providing rural fire services. Further one does not need special powers to fight a fire (Stephens v Stephens (1970) 92 WN(NSW) 810) so chances are they are not exercising any powers set out in ss 22-26. If that is the case the authority to exercise those powers outside their home fire district (s 21(2)) is not relevant.

Provided they are acting ‘in good faith’, that is they saw a fire, thought ‘we’re the rural fire service, we’d better go look at that as that is what a rural fire service does’ then they are protected (s 128). If there is anything done that could lead to liability (remembering that in 10 years the fire brigades have not been successfully sued (see Australian emergency law turns 10 in January 2019 (January 4, 2019)) the liability will still attach to the Crown. If there was an absence of authority under s 21(2) that would, I predict, be seen as a procedural or administrative error, not an error that goes to the heart of the firefighters’ action and converts their response into a ‘frolic of their own’. The consequence of, and therefore the need to ensure that people know they are responding is to do with effective management of the response (as discussed above) rather than legal protection against civil liability for some unpredictable default.

The other way a brigade may be called upon to respond to a fire outside their fire district is if they are travelling through the district and see the fire. Again, the Commissioner’s authority of September 2017 would allow them to do what they needed to do, but again let us assume that this authority has not been issued. The first thing they should do is notify the fire control centre, by radio or triple zero call if that can be done, and advise them of the brigade’s presence and that would probably give sufficient permission (s 21(2)). In any event, stopping at a fire doesn’t require the powers set out in ss 22-26; anyone can stop and attempt to put out a fire if they want to (Stephens v Stephens (1970) 92 WN(NSW) 810).

Further, and the definitive answer, is that that the Commissioner is aware of the issue and has in fact issued an authorisation in effect giving his permission under s 21(2)(b)(i) to any member of the RFS to act in any fire district.

Fire permits

Fire permits are required to light fires during bushfire danger periods or fires that pose a danger to buildings (Rural Fires Act 1997 (NSW) ss 86 and 87). The relevant authority for the issue of a fire permit within a rural fire district is the Commissioner of the Rural Fire Service (s 85). The authority to issue permits has been delegated to District Managers and Permit issuing officers (Rural Fire Service, Service Standard 1.3.1 Delegations and Authorisations (Including supplementary delegations – unincorporated area of NSW, 22 November 2013). The delegation to members of the RFS is two step delegation.

Service Standard 4.2.2 Fire Permits says that a permit may be issued by:

(a) The Fire Control Officer (FCO) – in relation to any part of the rural fire district to which he or she has been appointed;

(b) A Deputy Fire Control Officer (DFCO) – in relation to any part of the rural fire district to which he or she has been appointed;

(c) A member of the RFS who has been appointed as a Permit Issuing Officer (PIO) by a FCO – in relation to those parts of a rural fire district specified by the fire control officer from time to time.

In effect the FCO has a delegation ([2.4(a)]) and he or she may authorise an RFS member ([2.4(c))]. The RFS member may only issue a permit for ‘those parts of a rural fire district specified by the fire control officer from time to time’.

The problem

The problem according to my correspondent is that volunteer permit issuing officers (PIOs) are out in the field, sometimes hundreds of kilometres from their FCC and issue permits to landholders whose land is outside of that PIO’s brigade area’. The relevant ‘area’ for the PIO is not the brigade area (defined in s 18) but the area of the rural fire district defined in the PIO’s appointment. It does mean that an PIO cannot issue a permit authorising a fire on land that is outside the area in his or her appointment.

Question 2

A person commits an offence if they light a fire without a permit. If they have approached a PIO and that person has issued a permit but has done so for land that is outside ‘those parts of a rural fire district specified by the fire control officer’ then the PIO has acted beyond power. If the permit holder does not know that the PIO has acted beyond his or her power, then the permit holder would have a defence to any legal action. They would have an ‘honest and reasonable mistake’ (ie that they have ‘a fire permit issued by the appropriate authority’) and if that were true their act would be innocent (Proudman v Dayman [1941] HCA 28).

The PIOs actions would be ‘ultra vires’ (ie beyond power) but that would simply allow someone who wanted to stop the permit holder from lighting a fire to have the permit declared invalid. Not much help if the fire is already lit. If the PIO is knowingly issuing permits for areas outside ‘those parts of a rural fire district specified by the fire control officer’ that would be reasons to terminate his or her authority to issue permits.

Conclusion

There are no significant legal issues here. The New South Wales Rural Fire Service operates across New South Wales and in fact across Australia and the world. Brigades can operate outside their home fire district with the permission of the Commissioner and the Commissioner has given that permission in the document attached- RFS s 21 approval. Even without that general authority, being tasked to respond outside their district is sufficient authority.

As for permits a PIO can only issue permits for ‘those parts of a rural fire district specified by the fire control officer’. If they issue a permit outside that area it has no legal authority but if a permit holder did not know the PIO was acting outside his or her authority they would still have a defence to any allegation of illegally setting a fire contrary to ss 86 or 87.